NEW JERSEY DEPARTMENT OF HUMAN SERVICES, OFFICE OF LICENSING v. C.M. AND J.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2904-05T22904-05T2

NEW JERSEY DEPARTMENT OF

HUMAN SERVICES, OFFICE OF

LICENSING,

Petitioner-Respondent,

v.

C.M. and J.M.,

Respondents-Appellants.

________________________________________

 

Submitted January 24, 2007 - Decided June 25, 2007

Before Judges A. A. Rodr guez, Collester and Lyons.

On appeal from the final decision of the Commissioner of the Department of Human Services, AHU#02-120.

Appellants filed a pro se brief.

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Keri Ann Eglentowicz, Deputy Attorney General, on the brief).

PER CURIAM

C.M. and J.M. (appellants) are husband and wife. They challenge pro se the final agency decision by the Commissioner of the Department of Human Services, denying their application for licensure as foster parents. We affirm.

At the time that appellants sought licensure, their granddaughter, A.R., was residing in their home. A.R.'s biological mother, "Betty" is the daughter of C.M. from a prior relationship. Betty was sixteen years old at the time of A.R.'s birth. She has a history of emotional and behavioral problems. According to Newark Beth Israel Medical Center documentation, A.R. was discharged after her birth to the care of C.M. Thereafter, DYFS placed A.R. in appellants' home. They have taken care of A.R. since then. A.R. is now six years old.

The Bureau of Licensing (BOL) of the Division of Youth and Family Services (DYFS), denied appellants' application. This denial was based upon incidents that occurred on April 11, 1993 and December 9, 1998, that reflect on appellants' fitness to be licensed as foster parents.

The April 11, 1993 incident involved Betty, who was then ten years of age. The Elizabeth Police Department Incident Report reflects that C.M. was charged with simple assault against her husband and aggravated assault against Betty and possession of a weapon for unlawful purpose. According to the report, during a dispute between the appellants, C.M. possessed a knife and "inadvertently struck [Betty] in the eye with the knife." Betty was transported to the hospital. She was treated and released. According to the hospital records, Betty sustained a laceration under her left eye which required sutures. Subsequently, the Elizabeth Municipal Court dismissed the criminal charges against C.M.

The December 9, 1998 incident began with Betty going to appellants' home at 9:40 p.m. to get A.R. She was refused. The local police telephoned C.M. She stated that her daughter cannot return to her home. DYFS caseworkers went to the home with Betty. C.M. would not allow Betty to come inside the home. According to the DYFS report, C.M. shut the door in Betty's face, but allowed the DYFS caseworkers to enter. However, one caseworker stayed with Betty. While the caseworker was talking to C.M., there was a loud breaking of glass. Appellants went to the door and saw that Betty had broken the glass on the front door. J.M. went outdoors and started fighting verbally with Betty. The caseworker asked C.M. to telephone the police. She refused stating, "he should kick her ass." J.M. and Betty fought from the front stairs of the home into the front yard. One caseworker was able to telephone the police. Betty threatened to return and set the house on fire.

The police filed charges against Betty for damaging property and domestic violence. She was detained at the Youth Shelter. Thereafter, a juvenile delinquency complaint against Betty was entered. A domestic violence final restraining order was entered against Betty. The order gave custody of A.R. to C.M.

Based primarily on the 1993 and 1998 incident, the BOL denied appellants' application for licensure as foster parents. Appellants challenge the denial of their application. The matter was referred to the Office of Administrative Law as a contested case. Following a hearing, the Administrative Law Judge (ALJ) concluded that the licensure application should be granted.

The Commissioner adopted the ALJ's factual findings, but disagreed with the conclusion that "there is no reason to believe that, founded upon [appellants'] prior actions, there is a potential danger or risk of harm." The Commissioner wrote:

The findings of the ALJ reinforce, rather than lessen, the [BOL's] decision to deny the [appellants] a license. The ALJ's findings indicate poor judgment, inappropriate conduct, and unreasonable behavior during the 1993 and 1998 confrontations. It is this documented poor judgment that will place a foster child at danger in this household. The regulations in place at the time of the denial letter state that, "a foster parent . . . shall not evidence personal conduct that may present a potential danger to the foster child." N.J.A.C. 10:122C-1.7(a).

The ALJ properly recognized poor judgment and inappropriate behavior during the domestic altercation in 1993 that resulted in their daughter's accidental injury. The fundamental mindset that led to and allowed the occurrence of this proven domestic dispute is what presents a potential danger to children and is more important than proof positive concerning details of the injury.

The ALJ properly documented C.M.'s inappropriate and unreasonable conduct when she refused to call police (at the suggestion of DYFS worker at the scene) during the 1998 disturbance. In fact, it was a DYFS worker who summoned police to the scene. The ALJ found that J.M. did not engage in a physical altercation with his [step-]daughter, but had restrained her until police arrived. The respondents never followed the reasonable path of conduct by first alerting the police. The ALJ did not contemplate the consequences of the physical restraint, initiated by J.M., had no third party summoned police. The inappropriate conduct and lack of sensible judgment on the part of the respondents during this turmoil demonstrate that they would present a potential danger to a foster child in their care.

The ALJ accurately noted that substantiated instances of abuse or neglect need not be proved in order to deny a license. The findings of poor judgment, inappropriate conduct, and unreasonable behavior are in and of themselves sufficient as evidence that respondents may present a potential danger to a foster child. On this basis the license should be denied.

Therefore, pursuant to N.J.A.C. 1:1-18.6(b), it is the Final Decision of the Department of Human Services that the [appellants] be denied a foster home license.

This appeal follows. Appellants make the following arguments. First, the denial of their application was based "on DYFS's records which reflected that C.M. had caused injury to her child (in 1993) during a domestic altercation five years before [A.R.] was placed by DYFS (1998)." They also argue that J.M. did not cause bodily harm to his step-daughter in 1998. Therefore, the denial of a foster care license was belied by DYFS's placement of A.R. in their care. They also argue that on February 13, 2003, the Family Part granted C.M. custody of A.R. and visitation to Betty. A.R. remains in appellants' custody.

The issue here is not custody of A.R. The issue is whether appellants should be licensed as foster parents. In that regard, the scope of our appellate review is limited. We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. In re Taylor, 158 N.J. 644, 656 (1999). We will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency. Prado v. State, 186 N.J. 413, 427 (2006); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The fundamental consideration "is that a court may not substitute its judgment for the expertise of an agency so long as that action is statutorily authorized and not otherwise defective because arbitrary or unreasonable [or not supported by the record]." In re Distribution of Liquid Assets Upon Dissolution of the Union County Req'l High Sch. Dist. No. 1, 168 N.J. 1, 10 (2001) (internal citations omitted). We give "due regard" to the ability of the factfinder to judge credibility. Ibid. Credibility is always for the factfinder to determine. Ferdinance v. Agric. Ins. Co. of Watertown, 22 N.J. 482, 492 (1956); T.H. v. Div. of Developmental Disabilities, 381 N.J. Super. 366, 381-82 (App. Div. 2005), rev'd on other grounds, 189 N.J. 478 (2007). Where an agency's expertise is a factor, we defer to that expertise. In re Taylor, supra, 158 N.J. at 659. This deference is even stronger when the agency, like the Department of Human Services, "has been delegated discretion to determine the specialized and technical procedures for its tasks." Newark v. Natural Res. Council of Dep't of Envtl. Prot., 82 N.J. 530, 540, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

Applying that standard here, we conclude that an affirmance is warranted. The factfinder is the Commissioner who adopted the findings of the ALJ. The Commissioner's expertise in this matter is entitled to deference. It is not our function to substitute our independent judgment on the facts for that of an administrative agency. State v. Segars, 172 N.J. 481, 488 (2002); In re Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).

 
Affirmed.

"Betty" is a fictitious name. She is identified in the record as "B.R." or "B."

Now known as "Department of Children and Families." The BOL is now known as the "Office of Licensing."

(continued)

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8

A-2904-05T2

RECORD IMPOUNDED

June 25, 2007